On March 15, 2006, the Federal Communications Commission (FCC) issued a raft of decisions on indecency issues that modify its approach to enforcing the ban on “obscene, indecent, or profane” broadcasts in 18 U.S.C. § 1464. First, the FCC issued an omnibus order that proposed fines against six programs, found four others indecent and/or profane but not subject to fine, and dismissed complaints against over two dozen other programs. Second, the FCC issued a Notice of Apparent Liability proposing $3.6 million in fines against an episode of “Without a Trace,” which would con­stitute the largest indecency forfeiture ever for a single broadcast. Finally, the FCC issued a Forfeiture Order rejecting arguments for why there should be no fine against the Super Bowl XXXVIII halftime show that featured Janet Jackson’s now famous “wardrobe malfunction,” and thus ordered payment of the $550,000 forfeiture the FCC proposed in 2004.

Summary of FCC Actions

The decisions, which address only television programs (similar orders addressing radio are expected shortly), propose the following fines for programs the FCC found apparently indecent or profane:

$3.6 million for an episode of “Without a Trace” that included a scene that, though lacking nudity, depicted “male and female teenagers in various stages of undress,” and several non-explicit sexual acts;

$27,500 for an episode of “The Surreal Life,” involving a pool party that featured pixilated images of nudity;

$32,500 for “Con El Corazon En La Mano,” which featured a rape scene that the FCC found was “intense and extremely graphic” and “sustained” in duration;

$32,500 for a “Fernando Hidalgo Show” with a female guest who wore “an open-front dress with her nipples covered but her breasts otherwise fully exposed”;

$385,000 for 14 broadcasts of what the FCC deemed to be highly sexualized music videos;

$15,000 forfeiture for a noncommercial educational station’s broadcast of the Godfathers and Sons installment of the PBS-provided Martin Scorsese “Blues” documentary, in which principals uttered expletives approximately ten times in nearly an hour of program time; and

$27,500 for an unedited airing of “The Pursuit of D.B. Cooper” that had numerous uses of a common euphemism for excrement, or derivatives of that term.

One reason for the differences in fine amounts is that some broadcasts aired prior to Sept. 7, 2004, when the FCC increased maximum penalties to account for inflation.

The FCC also cited the following four programs as indecent or profane, but imposed no fine or other penalty because the violations predated the 2004 change in agency precedent that now allows it to impose sanctions for isolated and/or fleeting expletives:

The live “2002 Billboard Music Awards” that included an ad-libbed expletive by Cher;

The live “2003 Billboard Music Awards” that included expletives when Nicole Richie departed from a script calling for tamer euphemisms;

Episodes of “NYPD Blue” that included, along with other exple­tives the FCC found not indecent or profane, multiple use of a common euphemism for excrement and derivatives thereof; and

An installment of “The Early Show” where a guest used a bovine-related derivative of a common euphemism for excrement.

The omnibus order also considered more than two dozen other programs and found they included neither indecency nor profanity. These included a discussion on the “ Oprah Winfrey Show ” about teenagers’ casual sex practices and episodes of “ Will and Grace,” “Two and a Half Men,” “The Simpsons,” and “Alias,” as well as numerous others.

With respect to the Super Bowl halftime show, the FCC affirmed its previous finding of apparent liability on the grounds the performance violated the indecency rule and sub­jected stations owned and operated by the network carrying the game to a maximum forfeiture of $550,000. The FCC held that, even though the “costume reveal” that inadvertently led to Ms. Jackson’s exposure was not part of the performance scripted or choreographed by the broad­caster, but rather was planned independently by the performers just before the show, the network nevertheless “consciously omitted actions necessary to ensure that actionably indecent material would not be aired.” In addition, the FCC held the performers’ actions were attributable to the broad­caster under principles of agency and respondeat superior. The FCC also emphasized what it believed to be sexually charged lyrics and choreography in other portions of the halftime show that the FCC said indicated a desire to “push the envelope.” Further, the FCC stressed that nudity ensuing from the ad-libbed choreo­graphy had to be viewed from the perspective of the viewing audience, rather than the broadcasters’ intent, in assessing whether the exposure was accidental.

Implications of the FCC Decisions

The new indecency actions are notable in a number of respects. First, the omnibus order effectively reaffirms the FCC’s 2004 decision that the 2003 Golden Globe Awards program was indecent due to a single fleeting and isolated expletive by an award recipient, even though the Golden Globe decision remains subject to petitions for reconsideration. Golden Globe Awards marked a watershed in FCC indecency enforcement, because it reversed long-standing precedent holding that isolated and fleeting depictions, particularly in live settings, were either non-indecent or non-actionable. That decision also held that a common acronym for sexual intercourse always necessarily satisfies the threshold indecency requirement that utter­ances or depictions must involve sexual or excretory organs or functions. In addition, Golden Globe reinvigorated Section 1464’s profanity prong, long considered a dead issue, and held it applies to (1) vulgar, irreverent or coarse language construable as a reviling epithet naturally tending to provoke violent resentment, and (2) language so grossly offensive that it constitutes nuisance. Golden Globe said that this approach to profanity would proceed on a case-by-case basis and would encompass words or phrases containing elements of blasphemy or divine imprecation, and any other highly offensive words meeting the above criteria.

The omnibus order affords the common euphemism for excrement and all derivatives of it the same treatment as the acronym for sexual intercourse at issue in Golden Globe Awards. It holds that these terms necessarily always satisfy the requirement for a reference to sexual or excretory acts or functions and that these terms also satisfy the profanity standard as well. The FCC also explained that it intends to construe narrowly any exception to the profanity rule, by specifying that presumptively profane language will be found not actionable only in “rare cases,” where it is “demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.” Moreover, in the only seeming retrench­ment from Golden Globe, the FCC indicated that blasphemy/divine imprecation would not fall within the profanity standard.

Another important facet of these indecency decisions is the heightened standard of care to which treatment of the Super Bowl and Billboard Awards programs appears to subject broadcasters. With respect to the Super Bowl in particular, the FCC downplayed substan­tial efforts by the network to ensure that the program complied with broadcast standards, and in fact cited these efforts to suggest the network should have been at an even higher state of alert against any possible spontaneous utterance or action that could arguably have been indecent. In addition, the decisions effectively hold stations accountable for all individuals appearing on their broadcasts, including those who a broadcaster may not control directly.

Other notable conclusions that we draw from these FCC indecency decisions include:

Although the FCC denies that it has a de facto requirement that broadcasters impose time delays on live broadcasts so that potentially indecent or profane utterances or images can be deleted prior to broadcast, each indecency/profanity finding here involving live programming cites that the broadcaster failed to put sufficient technical safeguards in place.

Going forward, the FCC will no longer fine every network-owned and/or affiliated station that broadcasts a program found indecent or profane, but rather will fine only those that are the subject of one or more the FCC complaints.

With respect to “Without a Trace,” the FCC imposed forfeitures only on network affiliates in the Central and Mountain time zones that aired the program at 9 p.m., and not those on the East and West coasts that broadcast it during the 10 p.m. to 6 a.m. indecency “safe harbor.”

Two members of the FCC, Commissioners Michael J. Copps and Deborah Taylor Tate, called on the agency to give attention to “violent” programming as well as indecent and profane material. Most notably, Commissioner Copps advocates completing an outstanding Notice of Inquiry on violent programming and its impact on children. In a similar vein, Commissioner Tate’s statement cautions that “use of violence as the ‘punch line’ of titillating sexual innuendo should not insulate broadcast licensees” but rather “may, depending on the specific case, subject a licensee to potential forfeiture, regardless of the overall violent nature of the sequence in which such sexual innuendo is used.”

Commissioner Jonathan S. Adelstein also issued a statement in which he faults the new requirement that licensees must be subject to FCC complaints before a forfeiture will issue, calling it “a new, weaker enforcement mechanism that arbitrarily fails to assess fines against broadcasters who have aired indecent material.” However, Commissioner Adelstein also said the FCC “overreaches with its expansion of the scope of indecency and profanity…without first doing what is necessary to determine the appropriate contemporary commu­nity standard.” He also faulted the omnibus order for “failing to address the many serious con­cerns raised in…reconsideration petitions filed in the Golden Globe Awards case” in that by “prohibiting the use of additional words, the Commission falls short of meeting the constitu­tional standard and walking the tightrope of a restrained enforcement policy.”

If you would like to review the full text of the FCC's new indecency decisions and the statements of the Commissioners, please click on the following links:

Disclaimer

This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.